Bushnell v. Cooper

• Decision Date: 27 October 1919
• Docket Number: No. 12630.,12630.
• Parties: BUSHNELL v. COOPER.
• Court: Illinois Supreme Court

289 Ill. 260

124 N.E. 521

BUSHNELL

v.COOPER.

No. 12630.

Supreme Court of Illinois.

Oct. 27, 1919.

Appeal from First Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Charles M. Foell, Judge.

Petition for leave to file bill of review by Carl Bushnell against Homer H. Cooper, administrator. From a decree denying the petition, petitioner appealed to the Appellate Court, which affirmed (212 Ill. App. 503), and petitioner appeals. Judgment of Appellate Court affirmed.

Norman K. Anderson and Benjamin Clarke, both of Chicago, for appellant.

S. C. Irving, of Chicago (Daniel Riley McMaster, of Chicago, of counsel), for appellee.

THOMPSON, J.

March 6, 1917, appellant filed his petition in the superior court for leave to file a bill of review to set aside a decree entered by that court June 9, 1916, granting to appellant's wife, cross-complainant in the original case, separate maintenance, fixing alimony and solicitor's fees, and taxing costs against appellant. It is sought to set aside the decree because at the time it was entered the cross-complainant was dead. On the hearing the court denied the petition and refused to permit the bill to be filed. On appeal to the Appellate Court for the First District, the decree of the lower court was affirmed. A certificate of importance was granted, and this appeal prosecuted.

It appears, from the pleadings and the proofs heard on the application for leave to file the bill, that February 28, 1914, appellant filed his bill for divorce in the superior court, charging Mary Bushnell, his wife, with desertion; that she answered, and filed a cross-bill, charging infidelity and cruelty, and prayed for separate maintenance and support for herself and minor son. The cause came on for hearing before one of the judges of the superior court on November 17, 1915, and the following day the court announced that the equities of the case were with the cross-complainant, and that a decree would be entered dismissing the original bill, for want of equity, and granting to cross-complainant the relief asked in her cross-bill, with alimony at the rate of $100 a month for herself and $20 a month for the support of her minor child, and directed her solicitor to prepare a decree in conformity with such finding. Thereafter a decree of separate maintenance was prepared and submitted to the court December 3, 1915. At this time counsel for Mary Bushnell asked for an order fixing the amount of her reasonable solicitor's fees. The parties were unable to agree upon the amount, and the matter came on for hearing before the court December 8, 1915. A partial hearing was had, and over the protest of counsel for Mary Bushnell an order was entered referring the matter to a master in chancery to take proof upon that question. A hearing was had before the master, some 500 pages of testimony were taken, and May 23, 1916, a finding and recommendation made that the cross-complainant be allowed $1,500 as her reasonable solicitor's fees, together with something like $175 advanced by her as master's fees. June 9, 1916, exceptions filed to the master's report were heard and overruled, and the report was approved and confirmed. A decree was entered dismissing the original bill for want of equity and finding the facts substantially as set forth in the cross-bill. Mary Bushnell was granted a decree of separate maintenance, with an allowance of $1,200 a year from December 1, 1915, for her support, and $240 a year for the support of her minor child, together with the household goods at 4141 Lowell avenue, Chicago, her solicitor's fees of $1,500 and the master's fees of $175 advanced by her. The decree directed the payment of these sums, together with court costs and stenographer's fees, and made the same a lien upon the real estate of appellant.

The hearing on the exceptions to the master's report was taken up about 2:15 o'clock on the afternoon of June 9, 1916, and concluded about 4 o'clock that afternoon. Mary Bushnell was then residing at Norwood, Ohio, and was reported by her attorney to be in a very serious condition of health. It later developed that she died about 2 o'clock that afternoon. At the time the hearing was had and the decree entered her death was not known to any of the solicitors in the case, nor to the court. Knowledge of Mrs. Bushnell's death came to the appellant on the evening of June 9th the day the decree was entered; but he took no steps to bring such fact to the court's attention at that time, nor at any time until after the expiration of the term at which the decree was entered. July 15, 1916, appellantpresented his petition for leave to file a bill of review. The petition set forth the fact of Mrs. Bushnell's death, as above stated, and alleged that the court was without jurisdiction to enter the decree. No further steps, however, were taken until in the fall of 1916, when solicitors for appellant asked leave to withdraw the petition filed in the original case and to begin such proceedings as an independent action. The motion was allowed, and leave granted to withdraw the petition without prejudice. This was done, and, as hereinbefore stated, the present action commenced March 26, 1917.

The questions presented are whether or not the court had jurisdiction to enter a decree in the original action after the death of one of the parties, and the method by which such a decree may be reviewed, when the fact of such death does not appear on the face of the record.

Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72;Danforth v. Danforth, 111 Ill. 236;Matter of Crandall, 196 N. Y. 127, 89 N. E. 578,134 Am. St. Rep. 830,17 Ann. Cas. 874;Wilson v. Wilson, 73 Mich. 620, 41 N. W. 817;Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659;McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717;Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667,49 L. R. A. 141.

While the present action is one for separate maintenance, and differs from a divorce proceeding, in that the latter is one for the dissolution of the marriage relation, while the former is one in affirmance of it and to enforce the obligations of that relation, they are both, nevertheless, similar in their nature, as the marriage relation constitutes the foundation of the action in each case, and the dissolution of that relation extinguishes the subject-matter which forms the basis for such an action. Under our statute a proceeding for separate maintenance may be had in a court of equity, and by such proceeding a wife may secure her reasonable support and maintenance while she lives, or has lived, separate and apart from her husband without her fault. Alimony and solicitor's fees may be allowed the same as in divorce proceedings. The allowance of alimony pendente lite and of a reasonable amount as solicitor's fees to prosecute the suit is merely incidental to the main action. They are allowed only in...